Supreme Court refuses to take up Equal Rights Amendment dispute; advocates persist

Clarissa Horsfall demonstrates at a 2017 "Day Without A Woman" march in Miami. Photo by Joe Raedle/Getty Images

One month after Supreme Court Justice Ruth Bader Ginsburg died, having argued that the nation needs the Equal Rights Amendment, the surviving justices have dismissed an effort by women’s groups to enshrine the ERA in the U.S. Constitution.

The court refused to take up the matter at the behest of ERA proponents, who will instead make their case before the U.S. Court of Appeals for the 1st Circuit, which they’d hoped to bypass.

Advocates including Equal Means Equal and the National Conference of Mayors are seeking to force the Trump administration to acknowledge that the required 38 states have ratified the amendment and that it should become the law of the land.

Attorney General William Barr is officially ignoring the amendment’s ratification by the 38th state, Virginia. Barr’s Department of Justice instructed the federal archivist, David Ferriero, to reject the ratification documentation on the basis that it arrived decades too late to be counted.

But so did the 36th and 37th ratification votes, by Illinois and Nevada, in 2017 and 2018, which Ferriero did accept and record after the deadline, which was set in a preamble to the amendment itself and later revised by Congress.

Equal Means Equal contends Ferriero would have accepted the 38th state’s ratification, too, had not Trump’s Department of Justice instructed him to block it.

Anti-ERA forces siding with the administration include Concerned Women for America, a conservative Christian organization, and Independent Women’s Law Center (IWLC), a branch of Independent Women’s Forum.

“IWLC is concerned that adding the Equal Rights Amendment to the United States Constitution will jeopardize numerous policies and programs that benefit women and girls,” that organization’s filing says. ERA foes also worry that the ERA would strengthen abortion rights.

The U.S. House of Representatives voted to abolish the ratification deadline, but the Senate has not. Attorneys general in a handful of states also are fighting over whether their states’ position on the ERA should prevail. Virginia is leading the pro-ERA litigants; Alabama is leading the opponents. Florida, which never ratified the ERA, is not involved in the case.

Justice Ginsburg, who died on Sept. 18, is said to have agreed that technically the deadline expired and that the cause might be better served by starting afresh.

But she told an audience at Georgetown University law school in February of this year that, in any case, a guarantee of equal rights regardless of sex is long overdue in this country.

“Every constitution in the world written since the year 1950, even Afghanistan, has the equivalent of an equal rights amendment. And we don’t,” Ginsburg said then.

“My notion was, I would like to show my granddaughters that the equal citizenship stature of men and women is a fundamental human right,” she continued. “The Union will be more perfect when that simple statement — that men and women are persons of equal citizenship stature — is part of our fundamental instrument of government.”

Kamala Lopez, executive director of Equal Means Equal, said President Trump’s rush to confirm conservative Judge Amy Coney Barrett on Monday to succeed liberal Justice Ginsburg on the Supreme Court further demonstrates hostility toward equal rights for women including equal pay for equal work and reproductive freedom.

“It is appalling that the U.S. government, by way of its Department of Justice, is attempting to block certification and adoption of the ERA,” Lopez said in an interview with the Phoenix. “Why does this matter so much right now? Because the make-up of the Supreme Court will undoubtedly have an existential impact on women’s equality.”

Lopez said Equal Means Equal and scores of other pro-ERA organizations are determined to bring the issue of guaranteed gender equality before the Supreme Court.

“This makes the selection of Amy Coney Barrett to the U.S. Supreme Court one of existential impact on women’s social progress and daily lives,” Lopez said. “Her political perspective on women’s rights, unlike those of the justice she would be replacing, would lead us to believe that she will not support certification and adoption of the ERA.”

Approved by both chambers of  Congress with support from both political parties, the ERA was proposed to the states in 1972 and 35 had ratified by the 1982 deadline. Interest in the ERA reemerged with Trump’s election in 2016, after which Illinois, Nevada and Virginia ratified the amendment to carry it over the 38-state threshold.